Aleke V. Cop (2020)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division, hereinafter referred to as the Court below, affirming the decision of the High Court of the Federal Capital Territory, hereinafter referred to as the trial Court. The trial Court’s judgment was delivered on 25th March 2015 while the Lower Court’s judgment being appealed against is dated 18th December 2017.

The appellant and two others, Mohammed Ibrahim and Peter Onuh, were arraigned on a three-count charge of criminal conspiracy to commit armed robbery, armed robbery and unlawful possession of locally made pistol contrary to Sections 5(b), 1(2) and 3(1) of the Robbery and Firearms Special Provisions Act Cap 398 Laws of the Federation 1990. The 4th accused, Usman Sarki, was charged with receiving stolen property contrary to Section 317 of the Penal Code.

The four accused persons on arraignment pleaded not guilty to their respective charges.

To establish the case against the appellant and the other three accused persons, the prosecution called seven witnesses and tendered seven Exhibits: A1— A3, B, C, D and E.

The appellant and his co-accused persons testified for themselves. At trial the appellant and the 1st and 3rd accused persons resiled from their extra-judicial statement: D, B and C respectively.

At the close of the case including addresses of counsel, the trial Court in a well-considered judgment convicted the 1st – 3rd accused persons as charged and sentenced them to death by hanging.

Dissatisfied, the appellant appealed to the lower Court on a notice filed on 21st June, 2015 containing five grounds. The appeal was held unmeritorious and dismissed by the Court in its judgment delivered on the 18th December, 2017. The death sentence imposed by the trial Court was also affirmed by the lower Court.

Aggrieved, the appellant has further appealed to this Court on three grounds by his notice filed on the 23rd February 2018.

At the hearing of the appeal, parties’ respective counsel adopted and relied on their briefs of argument that had earlier been filed and exchanged.

The sole issue distilled by the appellant at paragraph 3.0 of his brief for the determination of the appeal reads: – “Whether the lower Court was right when the Court affirmed the decision of the trial Court based on the evidence of witnesses particularly the confessional statement of the appellant which was manifestly contradicting and unreliable in the face of the evidence before the trial Courts”.

Appellant’s foregoing issue has been adopted by the respondent at paragraph 3.1 of its brief as calling for resolution in the determination of the appeal.

On the lone issue, learned appellant’s counsel submits that it is wrong of the lower Court to affirm the trial Court’s findings of appellant’s guilt arrived at principally on the basis of Exhibit D, his supposed confessional statement. Apart from the violent internal contradictions in the statement itself, Exhibit D further contradicts all the other pieces of evidence on record. No reasonable tribunal, it is argued, can adjudge Exhibit D as being appellant’s confession to the commission of the offences he has been convicted for. Relying on the definition of confession under Section 27(1) of the Evidence Act, ABIRIFON V. STATE (2009) ALL FWLR (PT 471) 873, learned counsel submits that the two Courts are wrong to have dubbed Exhibit D as confessional and relied heavily on it in convicting the appellant. Learned appellant’s counsel x-rayed the totality of the evidence on record and concluded that Exhibit D remains uncoborrated by any piece of evidence either proffered by the prosecution or any of the appellant’s co-accused. Further relying on OKOH V. STATE (2009) ALL FWLR (PT 453) 1358 at 1392, learned counsel insists that the two Courts did not exercise the amount of diligence the law directs before they acted upon Exhibit D to convict the appellant. Having acted on the document inspite of the doubt as to its being made by the appellant, learned counsel concludes that the lingering doubt be resolved in appellant’s favour as specified inter-alia in QUEEN V. OBIASA (1962) ALL NLR 645, HUMBA V. STATE (1978) 10 DSCC 126, SHEHU V. STATE (2010) ALL FWLR (PT 523) 1841 at 1861 and OLADELE V. STATE (1993) 1 NWLR (PT 269) 294. Learned counsel urges that the appeal be allowed and the perverse concurrent decisions of the two Courts below be set-aside.

​Learned respondent’s counsel submits that the appellant is wrong in the contention that his confessional statement, Exhibit D, has wrongly been relied upon by the two Courts given those of his co-accused and the evidence of the prosecution the statement wantonly contradicts. Instead Exhibit D, it is contended, neither contradicts any of the confessional statement of his co-accused nor the evidence of any of the witnesses either for the prosecution or the defence. The contradiction between Exhibit D and the other pieces of evidence on record if any, learned counsel submits, are minor and not violent enough to warrant rejection of the confession by the Court. Referring to Exhibit D as well as Exhibits B and C made by the 1st and 3rd accused respectively, learned respondent’s counsel submits that the latter two corroborate rather than contradict the former. Counsel cites AYO GABRIEL V. THE STATE (1989) 5 NWLR (PT 122) 457 at 468.

Appellant, learned respondent’s counsel further submits, must be reminded that the two Courts are even entitled to convict the appellant solely on account of his confessional statement contained in Exhibit D which is clear, direct and positive. Learned counsel cites OSUAGWU V. STATE (2013) 5 NWLR (PT 1347) 387.

​More than Exhibit D the two Courts learned respondent’s counsel further contends, particularly assessed the evidence of PW1 and PW4 in whose presence the appellant along with his co-travellers were arrested with the Toyota starlet vehicle they robbed the former. The two Courts having complied with all the relevant decisions of the Apex Court in arriving at their decisions cannot be faulted. Learned respondent’s counsel entreats that the unmeritorious appeal be dismissed.

My lords, the narrow question this appeal seeks answer to is if the two Courts below are right in their concurrent findings of appellant’s guilt. Has the respondent discharged the burden of proof the law places on it by leading credible admissible evidence on the basis of which appellant’s guilt is established beyond reasonable doubt?

I am in complete agreement with learned respondent’s counsel that the concurrent findings of the two Courts below are beyond reproach.

It helps to revisit the facts which led the Courts to the findings they made. These are briefly recounted below.

​Mr. Adejimi Adeyemi, PW1, was, on the fateful day, driving his commercial taxi, a red Toyota Starlet with registration number BC 425 RBC in Abuja. At the AYA Junction, four persons, three of whom he subsequently identified as the appellant and 1st and 3rd accused persons stopped and engaged his services. They requested to be conveyed to Mpape. Along the way, the four overpowered PW1, pushed him out of the vehicle and drove off. PW1 in company of his brother, PW4, reported the incident at the AYA police station. Leaving the police station, the two spotted the stolen red Toyota Starlet in a traffic jam in the vicinity. They alerted the policemen and the appellant and the two others were arrested. The fourth person escaped.

At pages 159 -160 of the record of appeal PW1 told the trial Court inter-alia thus: –

​”… on 23/1/2007, I went to AYA bus stop. I was doing (kabu-kabu) taxi driving. I saw the three accused persons and they asked me to take them to Mpape. The other one ran away. He is not here. I charged them N500.00 and they said they will pay N400.00 they entered the car and I started driving. When we reached Mpape where there is filling station, the one in front said he will stop (drop), I then parked the car. The one in front opened the door and he put one of his legs on the ground. The other three at the back held me by the neck. They transferred me to the back seat. One of them from the back came to the front and took over the steering … As we stepped out of the station, we were looking for a car to take us to the barracks. Then my brother saw the car in traffic hold up. My brother intercepted the car and he asked the driver to stop. The driver stopped the car and he wanted to run away. They were four in the car. We struggled with them. One of them ran away and three of them were arrested. The car is a Toyota starlet with red colour…”

Julius Sangotoye, PW1’s brother testified in corroboration of latter’s foregoing evidence, As PW4 he inter-alia told the Court at pages 169 — 170 of the record thus:-

“… I know the three accused person; It is only the 4th accused I do not know. On 23/1/2007 my Junior brother met me after in the evening and reported to me that they snatched my Toyota car from his hand along Mpape Junction … I then rushed to the police at Asokoro AYA…..to report …….

​On the way to the barracks there is a checking point. I saw the Starlet car at AYA about 30 metres to the AYA police station. Then I pursued them. As there was a check point in the front I met them and 1st accused was the one driving … he stopped, opened door of the car and he tried to run away….. They were four in the vehicle but only three of them I know very well … The commissioner of police … went to where they parked the vehicle……opened the vehicle and saw a bag … asked who owns the bag … The 1saccused said he is the one who own the bag … they opened the bag and they saw a berretta pistol and a jack knife…”

In Exhibit D, his extra-judicial statement, the appellant, the 2nd accused, stated partly as follows:-

“… Yesterday being 23/1/2007 at about 1400 hours Hassan called me on the phone to meet him across. On reaching there, I met Hassan with Alhaji Mohammed Ibrahim. Alhaji Mohammed Ibrahim now told me that he need a vehicle to buy, he even said he will follow us to look for this vehicle. I was with Alhaji Mohammed till in the evening period. At about 1800 hours myself, Hassan, Alhaji Mohammed and two other persons which I don’t know their names. We entered a vehicle from Mararaba down to AYA. On reaching AYA, we stopped one Toyota starlet red in colour and took the driver for a drop to Mpape … on our way coming back at AYA, people were shouting thieves, thieves, there and then we were arrested along with Alhaji Mohammed and one other while Hassan and other ran away …”

The 1st and 3rd accused persons made similar confessions as made by the appellant who was the 2nd accused at the trial Court. The three confessional statements were admitted even though their makers resiled from them.

Now, for the prosecution to secure appellant’s conviction for armed robbery it must prove beyond doubt:

(i) That there was robbery or series of robberies.

(ii) That each of the robberies was an armed robbery and

(iii) That the appellant was one of those who took part in the armed robberies.

See SAMUEL BOZIN V. THE STATE (1985) LPELR – 799 (SC) and STATE V. SALAWU (2011) LPELR – 8252 (SC).

​It is evident from the content of Exhibit D, appellant’s very clear and undoubted admission of the commission of the offences he is concurrently convicted for by the two Courts below, as well as the oral testimony of PW1 and PW4 the victims of the offences, the prosecution has established the three ingredients of the offence of armed robbery. The appellant from his own confession and the testimony of PW1 and PW4, was one of the four persons who dispossessed the latter of their red Toyota Starlet taxi. A berretta pistol and knife were recovered from the 1st accused who not only admitted the fact of this recovery but that he was one of the four persons that snatched the taxi from its owners. Learned appellant counsel’s argument that evidence has not been led by the prosecution to prove the ingredients of the two offences appellant is concurrently convicted for, I must say, remains hollow. I entirely agree with learned counsel for the respondent that there does not seem to be any noticeable contradiction in either Exhibit D interse or in relation to the evidence of PW1 and PW4. The one, as rightly held by the lower Court, corroborates the other.

Appellant’s contention is that the two Courts concurrent decisions founded on these quality evidence is perverse. It cannot be, At page 340 of the record of appeal the lower Court had opined as follows: –

​ “At page 183 of the Record, the trial Court held inter alia: ‘……

​On this note I hold that the denial of making the confessional statements i.e., Exhibits B, C and D by the three accused persons does not render the statements inadmissible in evidence. Rather, the statements are admissible in evidence. And having tested the veracity of the statements, I accept the fact that the accused persons made the voluntarily and the statements are sufficient, direct and positive …’

I am ad idem with the Trial Court in its finding. The confessional statement of the Appellant has passed the test enunciated by the Apex Court in the case of UBIERHO vs. STATE (2005) 5 NWLR (PT 919) 644”.

The Court in conclusion stated: –

“The most damning evidence against the Appellant is the fact that he was found inside the stolen vehicle, just after it was reported stolen and in company of the other accused persons.

The question to ask is: what is the Appellant doing in a stolen vehicle moments after it was reported stolen and in the company of the other two accused person? The inescapable answer to this question is that the Appellant was a cahoots with the other accused persons in planning and executing the crime.

​Also, the Appellant, having been pinned to the crime, cannot be heard to raise in his oral testimony, the defence of alibi.

In the case of OGUNO v. STATE (2012) 7 NCC 449 at 469-470, this Court held as follows:

“However, where an accused person is unequivocally pinned to the locus in quo as the one committing the offence, the defence of alibi no more avails him. This is because the defence by the accused person that he was elsewhere at the material time the offence was committed is destroyed by the unequivocal evidence of a witness or of witnesses tying him to the locus in quo as one who committed the offence”.

The decisions of this Court in UBIERHO V. STATE (supra) and OGUNO V. STATE (supra) the lower Court relied upon in affirming the trial Court’s findings provide for the correct procedure in handling such issues. They bind both Courts below. It is unthinkable for the appellant to suggest that it is proper for the two Courts to deviate from them.

​In conclusion, I am unable to set-aside the concurrent decisions of the two Courts which the appellant failed to establish are perverse. Instead, I find that the findings of the trial Court as affirmed by the lower Court evolved from the evidence on record and application of correct principles on same in arriving to arrive at the concurrent findings. The findings are unassailable.

Resultantly, the appeal has failed and is accordingly dismissed. The concurrent decisions of the two Courts including the sentence on the appellant are hereby further affirmed.

SC.249/2018